Laypeople often think about estate planning as something that is resolved after you execute certain documents. While it is true that you must state your final wishes in writing, you should also consider the estate administration process that will unfold after you are gone.
In the trust declaration, you name a successor trustee to administer the vehicle when the time comes, and your heirs would be the beneficiaries. It is possible to use someone that you know personally to act as the trustee, but it is not a ceremonial role that you bestow upon someone as an honor.
The trustee has a fiduciary duty to the grantor and the beneficiaries. This means that the administrator must always act in the best interests of the parties that are involved.
There are very specific rules that must be followed to administer the trust in accordance with legal standards, and this is one thing to take into consideration. You should also be concerned about the longevity of the trustee and potential real or perceived conflicts of interest.
Depending on the nature of the assets, the trustee may be called upon to handle investments, and this is another level of responsibility that requires considerable expertise. The administrator that you choose must also have the time and the willingness to undertake all of these tasks.
In a real sense, finding the ideal trustee among your immediate contacts is kind of like the search for the mythical unicorn. That’s the bad news, but the good news is that you are making a connection with a professional fiduciary that you can rely on for top-notch trust administration services right now.
AD&R can assume this role after you pass away if you want to be certain that your living trust is administered in accordance with professional standards. This is a major area of specialization for our firm, and we should point out the fact that we can act as the trustee for more complex types of trusts.
The Special Needs Trust is an example of a complex trust. This would be an irrevocable trust, and the beneficiary would not be allowed to touch the principal at all. However, the trustee that you name in the declaration would be empowered to use assets in the trust to make the beneficiary more comfortable in many different ways. As you may imagine, the rules and regulations are complex, so the trustee must understand them thoroughly to preserve benefit eligibility.
You definitely do not want to take any chances when the stakes are this high, and very few people that are not professionals have any knowledge about the way that a special needs trust should be administered. This is where we can enter the picture to provide fiduciary services.
Our doors are open if you would like to consult with our professional fiduciary. You can send us a message to request an appointment, and we can be reached by phone at 775-823-9455.
When you find out all the facts about last wills, you will probably be interested in alternatives. What’s wrong with a will as an asset transfer vehicle? The short answer is that that a will must be admitted to probate, which is a costly, time-consuming legal process. You can also add in a number of other drawbacks that we will cover in a future post.
A revocable living trust would be a better choice for most people. If you are concerned about losing control of assets that you convey into a trust, you can set them aside. You can act as the trustee and the beneficiary while you are living if you create this type of trust, so you call the shots.
In a very real sense, the situation is the same as it would be if you still had all the assets in your own name. Yes, you sign them over to the trust, but you are the trustee with unlimited latitude to do whatever you want to do with the resources. You also have the power to revoke the trust at any time.
For these reasons, a living trust would not be the right choice for people that want to separate themselves from personal possession of the assets for one reason or another. This is done through the utilization of irrevocable trusts of different kinds.
The ultimate point of the trust is to serve as an estate planning device, so you have to account for the events that will take place after you are gone. To this end, you name a successor trustee, and you name your heirs as the successor beneficiaries. Postmortem asset transfers would not be subject to probate, so the drawbacks that we touched upon would be avoided.
Many people would say this is the major benefit, but there are a number of others. When assets have been conveyed into a living trust, the estate administration process is simplified, because the resources are conveniently consolidated.
To elaborate on the consolidation factor, even if you intend to convey assets that will be part of your estate into the trust, you may still have property in your direct possession at the time of your passing. You can account for this through the inclusion of a pour over will. This type of will allows the trust to absorb these assets; they are “poured over” into the living trust.
You can empower a disability trustee to assume the role if you ever become incapacitated, and this is a key feature, because incapacity strikes a very significant percentage of elders. Another benefit is the ability to add a spendthrift clause to protect a beneficiary that may be prone to irresponsible spending.
Like everything else within the realm of estate planning, there is no single answer to questions that people typically ask, because it all depends on the circumstances. When it comes to choosing a living trust trustee, the details make a difference. However, we will provide generalities here.
Legally speaking, the trustee can be any adult that is of sound mind that is willing to assume the role. However, administering a trust is going to require a significant level of financial acumen.
The trustee must have the time that it takes to do the job, and the commitment can be considerable in some cases. You also have to be concerned about conflicts of interest and anticipated longevity. There are certain rules that must be followed under the laws of the state of Nevada, and this is another consideration.
If you don’t know a willing, suitable candidate, or if the administration of your trust is going to be an ongoing, complex task, there is a solution. You could use a corporate trustee like a trust company or the trust section of a bank. When you go this route, a licensed financial professional will be at the helm to manage the trust effectively, and there will be inherent oversight.
We are here to help if you would like to discuss your estate planning goals with a licensed attorney. You can send us a message to request a consultation appointment, and we can be reached by phone at 775-823-9455.
When it comes to estate planning there are several types of tools you can use, depending on your circumstances. One such estate planning tool to protect your estates beneficiaries from future potential family law matters, or other creditor situations, it to leave their inheritance in a Trust Share.
Purpose of Trust Shares
A Trust Share can be created for each beneficiary of your estate after an individual’s death, or the second death of a joint couple. The Trust Share is a legal entity that has its own tax identification number. A Trust Share prevents the trust beneficiary from commingling assets with a spouse directly because the assets are held in Trust Share. A Trust Share prevents an inheritance from being transmuted into a spouse’s community property, which could be lost in a subsequent family law matter. A Trust Share provides for marital harmony after the death of a loved one because it eliminates the conversation between a beneficiary and their spouse on whether they are going to deposit an inheritance into a joint account because the Trust Share doesn’t allow that as an option.
The Trust Share also provides flexibility with trust asset management. Typically, if a beneficiary is responsible with financial assets the creator of the Trust Share will allow them to be their own Trustee and manage the trust funds for their own benefit. Generally, the distribution standard for a Trust Share is for health, education, maintenance, and support. If a beneficiary is not responsible with financial asset a safeguard can be put in place with an Independent Trustee that can be a responsible family member or Professional Trustee. This creates checks and balances, so assets are not wasted with frivolous spending.
Trust Shares also allow you to set a minimum age of when a beneficiary such as a child or grandchild can serve as their own Trustee. We have found with experience that the age of 25 or 30 is much better than 21 given work experience and life experience.
Trust shares can even have a re-write power when it comes to looking at how assets will be passed to grandchildren. You could leave a Trust Share to your child and provide them with a re-write power known as a Limited Power of Appointment to decide how the assets from their Trust Share will be divided at their death among their heirs.
Consult with an Estate Planning Professional
While Estate planning can be complicated, it is essential in protecting yourself and your loved one’s financial future. Give us a call at 775-823-9455 to make a free consultation with an estate planning attorney and see how we can help protect your legacy and your family.
Authored by: Aaron Squires
If you have any children under the age of 18, it is important that you at least have a will, including provisions designating who you would want to be the guardian(s) of your children, should anything happen to you. Legal guardianship provisions for minor children are an important part of estate planning.
The basics of the last will and testament
A last will and testament is basically used to make dispositions of your property at the time of your death. Another purpose of a will is to appoint someone to manage your estate and to appoint someone as guardian of your minor children. Without a will, your property will be distributed to your family following the laws of intestate succession in your state. Your closest relatives usually receive equal shares depending on the law's pre-determined priority system.
Establishing legal guardianship of minors with your will
When one spouse or parent dies, the surviving spouse or parent will automatically be the child's legal guardian unless that person's parental rights have already been terminated. Should both parents die at the same time, or nearly the same time, a guardian named in a will would become responsible for the child's care absent a court's determination that it is not in the child's best interest to have legal guardianship awarded to the person you designated. The presumption under the law is that the person you designate as your desired guardian of your minor children is the most appropriate choice.
Be sure to consider both present and future circumstances
When you are considering who should be named as legal guardian for your children, take into consideration the age, health and location of the potential individuals. You must also recognize that these factors will probably change in the future. For this reason, it is a good idea to select both primary and secondary guardians, should there be anything preventing your primary guardians from serving in that role. These designations should be reviewed at least every 2 years.
Make sure the legal guardians will have everything they need
In order to properly care for your children after you are gone your guardians will need to have access to financial assets, as well. Generally, it is most advantageous to accomplish this through the creation of a revocable living trust that is funded while you are alive. Using this technique your assets avoid the probate process upon your death and the person you designate as the successor trustee under the trust has access to the financial assets and the authority to make distributions to or for the benefit of your minor children without the probate court's involvement. The successor trustee may be the person you designate as your guardian, or it could be someone else if you feel someone other than the guardian is best suited to manage the financial decision-making. This can also be established through a testamentary trust created under a will, but then the assets would need to go through probate and the court will retain ongoing jurisdiction over the trust. The costs associated with administering a testamentary trust are generally much higher than those involved with the administration of a living trust after your death.
What happens if you do not nominate a guardian?
If you do not include guardianship provisions in your will, or establish a trust, the appointment of a legal guardian will be made by the probate court. Although it is the judge's responsibility to ensure the best interests of the child are met, the decision may not coincide with your own wishes. That is why being proactive and creating an estate plan is the best solution for you and your family.
If you have questions regarding legal guardianship, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
In the case In re Estate of Karter Wu (Supreme Court of Queensland, Australia), Mr. Wu created and stored his Last Will and Testament on an iPhone, along with a series of other documents, most of them final farewells.
Wu’s iPhone Will named an executor and successor, set forth how he wished to dispose of his assets at death, dealt with his entire estate, and authorized the executor to deal with his financial affairs. The Will began with the words “This is the Last Will and Testament of Karter Wu.” At the end of the document, Wu typed his name where the testator would normally sign his name, followed by the date and his address. The Australian court admitted the Will to probate.
The law for the execution of a valid Will in Queensland, Australia, is set forth in the Succession Act of 1981. The Act provides the requirements for execution, however, it provides that, if the court is satisfied that a person intended a document to form his Will, then the document shall be considered a Will as long as it purports to state his testamentary intentions. Australian law defines a “document” to include any disc, tape, article, or any materials from which writings are able to be produced or reproduced. Citing a New South Wales, Australia, case that held a Word document stored on a laptop computer to be a document, the court held the electronic record on the iPhone was a document for purposes of the statute. Since the record contained on the iPhone named an executor, authorized the executor to deal with his financial affairs, and provided for the distribution of Wu’s entire estate at a time he was contemplating his imminent death, the court held that it met the requirements of the Succession Act 1981.
California Probate Code § 6110 provides that a Will shall be in writing and signed by the testator, or signed in the testator’s name by some other person in the testator’s presence and at the testator’s direction, or by a conservator pursuant to court order. The Will must have the signatures of two witnesses. If the Will does not meet these requirements, it shall be treated as if it did meet the requirements if the proponent of the Will establishes by clear and convincing evidence that, at the time the testator executed the Will, he or she intended the document to be his or her Will.
Similarly, New Jersey law provides at N.J.S. 3B:3-2 that a document or writing is treated as complying with the normal rules for executing a Will if the proponent of the writing establishes by clear and convincing evidence that the decedent intended the document to constitute the decedent’s Will.
The California and New Jersey statutes are based on § 2-503 of the Uniform Probate Code. The impetus for the enactment of this section of the Uniform Probate Code may have been a case where an attorney attempted to probate the unsigned draft of a Will of a decedent who was killed in the World Trade Center attack on September 11, 2001.
California Probate Code § 6130 further provides: “a writing in existence when a Will is executed may be incorporated by reference if the language of the Will manifests this intent and describes the writing sufficiently to permit its identification. California Probate Code § 6131 states: “a Will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the Will, whether the acts or events occur before or after the execution of the Will or before or after the testator’s death. . . .”
Recently, a Will was admitted to probate in California where the Will referred to the disposition of assets in accordance with recordings that the decedent had left, both prior to the execution of the Will and would leave after the execution of the Will, on his answering machine at his residence. The judge found that the recordings constituted a writing within the meaning of the California Probate Code and were to be incorporated by reference and were to be considered to be acts of independent significance. Therefore, the recordings were given effect with regard to the disposition of property as governed by the Will.
While the existence of these statutes in many states have broadened what may be admitted as a Will for probate, it is not a good idea to rely on these statutes to assure that one’s Will will be accepted by the local probate court. Having a Will drafted by an attorney experienced in estate planning and drafting is always the best course of action to assure there will be no problems with the disposition of one’s estate at death.
Furthermore, there are many reasons why one may not wish to subject his or her estate to probate upon death, including potential additional costs, delays in administration, and the publicity of both the extent of the decedent’s wealth and the identification of the beneficiaries of the estate. There are many ways to avoid a probate administration at death, including the execution and funding of a revocable or irrevocable trust during the individual’s lifetime.
For more information about the ways to avoid probate, contact our law office. Our office focuses on estate planning, probate administration, and methods to avoid probate for those who have a desire to do so. We work with clients of all wealth levels and ages. As a member of the American Academy of Estate Planning Attorneys, our firm is kept up-to-date with information regarding estate planning and estate and trust administration strategies. You can get more information about scheduling a complimentary estate planning appointment and our planning and administration services by calling Gerald M. Dorn, Esq. at (775) 823-9455